Citation Nr: 1008849
Decision Date: 03/09/10 Archive Date: 03/17/10
DOCKET NO. 08-26 256 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUES
1. Entitlement to service connection for a lung disorder, to
include bronchitis and asbestosis.
2. Entitlement to service connection for a low back
disorder.
REPRESENTATION
Appellant represented by: Alabama Department of Veterans
Affairs
ATTORNEY FOR THE BOARD
A. Lindio, Associate Counsel
INTRODUCTION
The Veteran had active duty service from August 1972 until
June 1975.
This matter comes before the Board of Veterans' Appeals (BVA
or Board) on appeal from a May 2007 rating decision, in
regards to the low back and bronchitis claims, from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Cleveland, Ohio and from a July 2008 rating decision, in
regards to the asbestosis claim, from the RO in Montgomery,
Alabama. All of these matters are currently before the
jurisdiction of the RO in Montgomery, Alabama. In view of
the nature of the Veteran's claims related to his lungs, the
Board has recharacterized the separate claims for bronchitis
and asbestosis into a single issue for simplicity.
The May 2007 rating decision also included a grant of service
connection for burn residuals of the right side of the face,
bilateral wrists, and left elbow, as well as denials of
service connection for a bilateral eye condition. No Notice
of Disagreement (NOD) was filed in regards to the grant of
burn residuals, as such, that claim is not currently before
the Board. Additionally, no Substantive Appeal was filed in
regards to the bilateral eye condition claim, thus that claim
is also not currently before the Board.
The issue of service connection for a lung disorder, to
include bronchitis and asbestosis, is addressed in the REMAND
portion of the decision below and are REMANDED to the RO via
the Appeals Management Center (AMC), in Washington, DC.
FINDING OF FACT
The evidence of record does not show that the Veteran's low
back disorder is due to his active military service.
CONCLUSION OF LAW
The criteria for the establishment of service connection for
a low back disorder have not been met. 38 U.S.C.A. §§ 1110,
1131, 1137, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§
3.102, 3.159, 3.303, 3.304 (2009).
REASONS AND BASES FOR FINDING AND CONCLUSION
Duty to Notify and Assist
As provided for by the Veterans Claims Assistance Act of 2000
(VCAA), VA has a duty to notify and assist claimants in
substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007);
38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009).
Proper notice from VA must inform the claimant of any
information and medical or lay evidence not of record (1)
that is necessary to substantiate the claim; (2) that VA will
seek to provide; and (3) that the claimant is expected to
provide, in accordance with 38 C.F.R. § 3.159(b)(1).
Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice
must be provided prior to an initial unfavorable decision on
a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328
(Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112
(2004).
In addition, the notice requirements of the VCAA apply to all
five elements of a service-connection claim, including: (1)
veteran status; (2) existence of a disability; (3) a
connection between the appellant's service and the
disability; (4) degree of disability; and (5) effective date
of the disability. See Dingess/Hartman v. Nicholson, 19 Vet.
App. 473 (2006). Further, this notice must include
information that a disability rating and an effective date
for the award of benefits will be assigned if service
connection is awarded. Id. at 486.
The U.S. Court of Appeals for the Federal Circuit previously
held that any errors in notice required under the VCAA should
be presumed to be prejudicial to the claimant unless VA shows
that the error did not affect the essential fairness of the
adjudication. See Sanders v. Nicholson, 487 F.3d 881 (Fed.
Cir. 2007). Under Sanders, VA bore the burden of proving
that such an error did not cause harm. Id.
However, in the recent case Shinseki v. Sanders, 129 S.Ct.
1696 (2009), the U.S. Supreme Court held that the Federal
Circuit's blanket presumption of prejudicial error in all
cases imposed an unreasonable evidentiary burden upon VA.
Rather, in Shinseki v. Sanders, the Supreme Court suggested
that determinations concerning prejudicial error and harmless
error should be made on a case-by-case basis. Id. As such,
in conformance with the precedents set forth above, on
appellate review, the Board must consider, on a case-by-case
basis, whether any potential VCAA notice errors are
prejudicial to the claimant.
Here, the VCAA duty to notify was satisfied by way of a
letter sent to the appellant in May 2005 that fully addressed
all of the notice elements and was sent prior to the initial
RO decision in this matter. The letter informed him of what
evidence was required to substantiate the claims and of his
and VA's respective duties for obtaining evidence. The
letter informed him that his service connection claim must be
supported by evidence indicating a current disability,
evidence that the injury or disease was incurred or
aggravated during service, and medical evidence of a nexus
between the current disability and the in-service injury or
disease. He was also informed that VA would seek to provide
federal records. Finally, he was informed that it was his
responsibility to support his claim with appropriate
evidence, though VA would help him obtain records from any
non-federal sources.
With respect to the Dingess requirements, in March 2006, the
RO provided the appellant with notice of what type of
information and evidence was needed to establish disability
ratings, as well as notice of the type of evidence necessary
to establish an effective date. With that letter, the RO
effectively satisfied the remaining notice requirements with
respect to the issues on appeal.
Under these circumstances, the Board finds that the
notification requirements of the VCAA have been satisfied as
to both timing and content. Therefore, adequate notice was
provided to the appellant prior to the transfer and
certification of his case to the Board and complied with the
requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b).
Next, VA has a duty to assist the appellant in the
development of the claim. This duty includes assisting him
in the procurement of service treatment records and pertinent
treatment records and providing an examination when
necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.
The Board finds that all necessary development has been
accomplished, and therefore appellate review may proceed
without prejudice to the appellant. See Bernard v. Brown, 4
Vet. App. 384 (1993).
The RO has obtained VA outpatient treatment records and
identified private medical records. The Veteran has
submitted statements and medical records. In addition, he
was afforded a VA medical examination in March 2007, which
provided specific medical opinions pertinent to the issue of
service connection for a low back disorder, currently on
appeal.
Significantly, neither the appellant nor his representative
has identified, and the record does not otherwise indicate,
any additional existing evidence that is necessary for a fair
adjudication of the claim that has not been obtained. The
Board finds that all necessary development has been
accomplished, and therefore appellate review may proceed
without prejudice to the appellant. See Bernard v. Brown, 4
Vet. App. 384 (1993). Hence, no further notice or assistance
to the appellant is required to fulfill VA's duty to assist
in the development of the claim. Smith v. Gober, 14 Vet.
App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela
Cruz v. Principi, 15 Vet. App. 143 (2001); see also
Quartuccio v. Principi, 16 Vet. App. 183 (2002).
Applicable Law
Under applicable law, service connection is granted if the
evidence establishes that coincident with his service, the
veteran incurred a disease or injury, or had a preexisting
injury aggravated, in the line of duty of his active service.
38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service
connection may also be granted for certain chronic diseases,
when such disease is manifested to a compensable degree
within one year of separation from service. 38 U.S.C.A.
§§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. That
an injury or event occurred in service alone is not enough.
There must be chronic disability resulting from that injury
or event. If there is no showing of a resulting chronic
condition during service, then a showing of continuity of
symptomatology after service is required to support a finding
of chronicity. 38 C.F.R. § 3.303(b). Service connection can
also be found for any disease diagnosed after discharge, if
all the evidence establishes it was incurred in service.
38 C.F.R. § 3.303(d).
Service connection requires that the evidence establish: (1)
medical evidence of a current disability, (2) medical
evidence, or lay testimony in some cases, that the injury or
disease was incurred or aggravated during service, and (3)
medical evidence of a nexus between the current disability
and the in-service injury or disease. Pond v. West, 12 Vet.
App. 341 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995).
Low Back Claim
The Veteran contends that he developed a back disorder due to
service. In a September 2006 statement, the Veteran reported
that he had been told that he had a back strain in service
and that no testing or imaging were provided as to the cause
of his problems. He further stated that he had gone to sick
call because of difficulty walking.
The Veteran's service treatment records indicate that the
Veteran complained of back pain in March 1974. In a March
20, 1974, service treatment record, the Veteran reported low
back pain, with an onset of three weeks prior. The examiner
found no urinary symptoms, no tenderness on palpitation and
no history of trauma or heavy lifting. The examiner found
the Veteran to have a full range of motion and a neurological
examination on the extremities to be within normal limits.
The examiner diagnosed him with a possible lumbar spine
strain. A March 28, 1974 service treatment record also
reported that the Veteran complained of low back pain. The
examiner provided additional medication.
The Veteran's June 1975 separation exam indicated that the
examiner found his spine to be normal. In his June 1975
Report of Medical History, the Veteran specifically denied
recurrent back pain.
The Veteran's record is silent for decades following his
discharge for any complaints of, or treatment for, a back
disorder.
The Veteran's private medical records generally indicate
treatment for a back disorder, starting in 2003. In an
August 2003 private medical record, by Dr. C.S.H., the
examiner reported that the Veteran complained of 2 to 3 years
of low back pain, with radiation to the right knee. The
examiner found him to have low back and right leg symptoms,
as well as myelopathy with multiple levels of stenosis and
cord signal change.
The Veteran was provided a VA examination in March 2007,
which included a review of the claims file. The Veteran
reported that he had one episode of back pain, other than the
March 1974 records, in service. The examiner noted that that
episode was not of record. The Veteran also reported that
that episode of pain in his back had cleared and remained
cleared until 1987, when he began having low back pain again
and was seen at the VA hospital. The Veteran claimed that he
had flare ups of low back pain thereafter, which has slowly
increased to a daily event. The examiner found the Veteran
to have muscle strain of the lumbar spine and degenerative
joint disease of the lumbar spine, as noted on MRI scans.
The examiner found no causal connection or relationship
between the Veteran's in-service low back pain of 1974 and
his present back condition. The examiner clarified that he
believed that the two disorders were entirely separate and
distinct entities.
No medical evidence of records supports the Veteran's
contention that his current back disorder is related to his
service. In his September 2006 statement, the Veteran
reported that his doctors told him that he has had these
spinal problems since early adulthood and that the duties he
performed in the military exacerbated or caused his back
disorder. However, the Veteran's statements as to what his
various physicians told him do not constitute the necessary
medical evidence as to etiology for his claim. Robinette v.
Brown, 8 Vet. App. 69, 77 (1995), citing Warren v. Brown, 6
Vet.App. 4 (1993) (For the proposition that an appellant's
statement as to what a physician told him as a lay claimant
does not constitute the requisite medical evidence of a
medical diagnosis of medical etiology).
The service treatment records indicate that the Veteran's in-
service back pain resolved, as indicated by the normal
findings regarding the spine by the June 1975 examiner and
the Veteran's own report denying recurrent back pain at that
time. The Board further notes that the Veteran himself has
reported that he did not have chronic back pain in the years
immediately following his service. In his March 2007 VA
examination, he reported that his back remained free pain
until approximately 1987, over a decade following his
discharge from service.
Furthermore, the March 2007 VA examiner specifically found
that the in-service disorder was a separate and distinct
disorder from the Veteran's current back disorder.
The only other evidence provided as to the Veteran's claim is
his belief that his current back disorder is due his service.
Although he can provide testimony as to his own experiences
and observations, the factual question of if his disorder can
be attributed to his in-service experiences and injuries is a
medical question, requiring a medical expert. The Veteran is
not competent to render such an opinion. Espiritu v.
Derwinski, 2 Vet.App. 492, 495 (1992).
As noted above, the Veteran was advised of the need to submit
medical evidence demonstrating both a current disorder, as
well as medical evidence demonstrating a nexus between the
claimed current disorder and service by way of the VCAA
letter provided to him, but failed to do so. A claimant has
the responsibility to present and support a claim for
benefits under laws administered by the VA, 38 U.S.C.A. §
5107(a).
As the preponderance of the evidence is against the claim,
the benefit of the doubt rule does not apply. Gilbert v.
Derwinski, 1 Vet. App. 49, 58 (1991). The Veteran's claim
for service connection for a low back disorder is denied.
ORDER
Service connection for a low back disorder is denied.
REMAND
The Veteran contends that he developed bronchitis due to in-
service asbestos exposure. He has alternatively claimed to
have developed asbestosis due to in-service asbestos
exposure.
As an initial matter, the Board concedes that the Veteran was
exposed to asbestos in service. Although a July 2008 rating
decision indicated that the Veteran had not provided
information regarding his asbestos exposure, the Veteran
provided information regarding his asbestos exposure in a
February 2006 statement.
The Veteran's DD 214 indicates that he had a MOS as a fireman
with the Navy. The Veteran's service personnel records do
not provide information regarding his duties during service.
However, in a February 2006 statement, the Veteran reported
exposure to asbestos in the boiler room. He provided
credible reports of exposure from repairing asbestos steam
covers and lines, as well as other work related to the boiler
room aboard ship. Furthermore, the Board notes that
following service, the Veteran worked as an 18 wheeler truck
driver, as indicated in a November 2005 letter from Dr.
P.J.B.S. and the Veteran's February 2006 statement. Given
the evidence of record, the Board concedes that the Veteran
was exposed to asbestos in service.
The Veteran's service treatment records indicate complaints
of, or treatment for, a respiratory disorder, in March 1975.
At that time, the Veteran reported a sore throat and sinus
blockage. The examiner found him to possibly have
bronchitis.
A November 2005 private chest x-ray, by Dr. J.W., found the
Veteran to have bronchovascular prominence, which can be seen
in bronchitis.
A November 2005 letter, from Dr. J.W.B., found that the
November 2005 chest x-ray had been reviewed for the presence
of and classification of pneumoconiosis (asbsestosis)
according to the ILO 80 classification. The examiner found
the parenchymal changes to be consistent with asbestosis
provided the Veteran's exposure history and period of latency
were appropriate.
A February 2006 private physical consultation, with Dr.
J.W.H., noted that the Veteran was a smoker of two to three
packs per day with asbestosis and chronic bronchitis. The
examiner found him to be stable, but clinically impaired
regarding chronic respiratory disease.
The Board observes the Veteran also has an extensive history
of smoking.
The Veteran has alternatively been found to have indications
of bronchitis or asbestosis, from the same chest x-ray. This
case presents certain medical questions which cannot be
answered by the Board. See Colvin v. Derwinski, 1 Vet. App.
191, 175 (1999) (the Board is prohibited from exercising its
own independent judgment to resolve medical questions).
These questions concern whether there is objective medical
evidence of any residuals of the claimed in-service asbestos
exposure, and whether there is a relationship, between
bronchitis and possible asbestosis and the Veteran's service.
These questions must be addressed by an appropriately
qualified medical professional.
A medical opinion is therefore necessary. See Charles v.
Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. §
3.159(c)(4) (2009) (a medical examination or opinion is
necessary if the information and evidence of record does not
contain sufficient competent medical evidence to decide the
claim).
Accordingly, the case is REMANDED for the following actions:
1. RO/AMC should arrange for an
appropriate VA examination of the
Veteran for the purpose of evaluating
the nature, extent, and etiology of the
Veteran's claimed lung disorder. The
examiner shall conduct all appropriate
tests and diagnostic studies to this
end. The examiner shall review the
Veteran's VA claims folder in
conjunction with the examination and
provide an opinion, with supporting
rationale, as to:
Whether any currently diagnosed
disorder or disease, to include
bronchitis and/or asbestosis, is
at least as likely as not (at
least a 50 percent probability)
related to the residuals of
asbestos exposure presumed to have
been sustained in service; or is
otherwise related to the Veteran's
military service.
If there are other, more likely causes
of the claimed disabilities, those
should be noted. In discussing his/her
opinions, the examiner should
acknowledge the Veteran's lay
statements of record relating to the
onset of the disorder, as well as the
medical evidence of record, including
service treatment records. The
rationale for all opinions expressed
should be provided in a legible report.
2. When the development requested has
been completed, the case should again
be reviewed by the RO/AMC on the basis
of the additional evidence. If the
benefit sought is not granted, the
Veteran should be furnished a
Supplemental Statement of the Case, and
be afforded a reasonable opportunity to
respond before the record is returned
to the Board for further review.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009).
______________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs